There's no blaming the Constitution for this inadequacy of Barack Obama

Sandy Levinson

George W. Lardner, Jr. has an excellent op-ed in today's Washington Post, a successor, in a way, to an earlier similar op-ed in the New York Times in 2010. Both make the same basic point: The Constitution unequivocally gives the President of the United States the power to pardon anyone for any crime committed against the United States. It can be used wisely (Warren G. Harding's pardon of Eugene V. Debs--which was followed by a meeting, at Harding's request, at the White House, in which he said, "I have heard so damned much about you, Mr Debs, that I am very glad to meet you personally"--which is enough in my book to remove Harding as the candidate for America's worst President) or unwisely (Bill Clinton's pardon of Marc Rich, George H.W. Bush's pardons of Caspar Weinberger and Eliot Abrams), but it is an important part of the President's power. As Lardner points out in today's column, if Obama shares his Attorney General's view that the US has incarcerated far too many people for far too long prison terms as part of the "war on drugs," there's actually a very simple solution: The President can commute all of the sentences to time-served, save for the kingpins who deserve their mandatory (or even longer) sentences. Similarly, if push comes to shove, he can announce an amnesty for everyone who entered the country illegally prior to, say, January 1, 2012 or everyone who has overstayed a visa (which I gather "explains" far more "illegal aliens" than does initial illegal entry). To be sure, that would create a huge political firestorm, but, hey, what does he have to lose?

It's clear that his second term is shaping up to be a failure, some of which may be his own fault; some of which is simply the fault of circumstances that he really can't control, like the current chaos in the Middle East, where I continue to believe that his judgment is far, far better than, say, that of Sen. John McCain, who almost literally has never seen a war he didn't want the US to get involved in; and some/most of it the fault of the Constitution, which gives the mad-dog Republicans who control the House of Representatives the power to torpedo any and all legislative initiatives supported by the President. But, as already indicated, Obama can't blame the Republicans or the intricacies of the American alliance system in the Middle East for his remarkable failure, in what is now the fifth year of his presidency, to use his Pardon Power in a way that might both provide individual mercy and at the same time educate the public about the pathologies of our so-called "criminal justice" system.

He has proved quite willing to abuse the prerogatives of office, like many other presidents, when he believes that "national security" is at stake. But he appears altogether unwilling to use an undoubted prerogative of office to help a bunch of truly vulnerable people and, by the way, save the US a whole heap of money that is now devoted to their incarceration. One gets the distinct feeling that he issues any pardons at all only under extreme pressure (something like his pardoning the Thanksgiving turkey). One of the reasons I viewed Mitt Romney with contempt was the pride he took in never using his power as Governor of Massachusetts to issue a pardon. Obama, I am afraid, is only slightly better than Mitt on this score.

He should be less conservative in his use of the pardon power and this is one area that should be reformed. It doesn't get enough play, which is one reason it will continue to not be properly addressed.

There are problems with the system in place that hinders use of the power. But, how did he really fare matched up to recent Presidents on this issue? This helps to determine such things like "his second term is shaping up to be a failure" -- what does this mean?

He took office as to his second term in January! Give me a break on that front.

It's not just victims of the "war on drugs" whom Obama should pardon; it is also victims of other mandatory minimums (which would violate the Eighth Amendment if the Supreme Court hadn't repealed it). Seehttp://www.eschatonblog.com/2013/08/if-only-there-was-someone-who-had-power.html

Joe asks an interesting question. George W. Bush was also basically terrible in his use of the pardoning power (though he notably modified the sentence of Scotter Libby). I think this was a reaction, in part, to what was widely perceived as Clinton's abuse of the power vis-à-vis his pardon of Marc Rich. Also, the pardoning process has become thoroughly bureaucratized within the Department of Justice, which, in this context, may well be ominous. I suspect the incentives are far more to decline than to support pardons, and everything is done retail rather than wholesale.

Pardoning all low level drug offenders would be a pretty bold move and not one characteristic of Obama. How about just not prosecuting drug possession in states where it is legal and pardoning this guy

mls may be right about the relationship between the pardoning power and deportability. That raises yet other issues, i.e., the degree to which the Executive Branch is authorized to use its discretion with regard to deportation, which ends up being similar to a type of pardoning power. Obama should get credit for his "enactment" of the Dream Act through executive power. If he can do that (and some, of course, say, he couldn't, at least legitimately), then what are the boundaries? I ask this as a genuine question.

Sandy, you were around when Pres. Ford pardoned Richard Nixon, who almost brought America to ruin, but for some reason neglected to include it in your presidential pardoning comparative. How wisely was that pardon? When I think of presidential pardons, Nixon is the first to come to my mind. Did you forget in a senior moment?

Thinking mega, I'm a bit wary of the unilateral power to pardon overall, particularly beyond the individuals the executive controls on their own or tied to certain special events.

For instance, it made sense for Washington to pardon the Whiskey Rebellion rebels or Ford/Carter to pardon draft resisters. But, one person, e.g., permanently commuting all death sentences, even though I'm not fan of the d.p. I think it's good some states have limits in that department.

Anyway, I think looking at the bureaucracy etc. is important in this area, at least, to my understanding. There was a major article on the issue in Pro Publica or some such source. See also, Mark Osler here:

The President, if you are a big believer in the unitary executive, or the Secretary of Homeland Security otherwise, has a plenary discretion to not to put aliens into deportation proceedings. However, that's not a permanent solution, it only lasts until the next administration.

There are a variety of waivers and only forms of more permanent discretionary relief available, but they are not at the Sec. HS's unguided discretion. For example cancellation of removal for a non-permanent resident requires:

A) Physical presence in the country for 10 yearsB) Good moral characterC) Never having used false documents, and most difficultyD) that the alien prove that his removal would result in exceptional and extremely unusual hardship to a USC relative.

Even after all that, the administration is limited to 4000 cancellations (shared between resident and non-resident cancellations)

Perhaps Sandy is suggesting that Pres. Obama should take action in the nature of the Emancipation Proclamation, which I understand was not exercised via the pardon power. Just imagine the reactions of Pres. Obama's foes salivating at some form of broad pardons suggested by Sandy, including post-pardon exposure of crimes that might be committed by some of those broadly pardoned. It could turn into a Willie Horton heyday politically. As Joe points out, pardoning the Whiskey Rebellion and draft resisters may have made sense. The broad pardoning suggested by this post would raise too many long term political issues, perhaps serving as a precedent for future political actions by presidents as political power changes. Such broad pardoning would surely lead to cries for a constitutional amendment or even a constitutional convention. Could that be the hidden message in this post?

"Inadequacy" presumes that Barack Obama is attempting to do the right thing, and failing. I don't believe this is actually the case. Obama is clearly only too happy to persecute people for doing what he himself admits to having done when younger. He has passed up many opportunities to relent, such as calling off the dogs of the drug war in states that legalize.

At some point you have to admit that he's not a fallible champion of your side, but on the OTHER side.

"Obama is clearly only too happy to persecute people for doing what he himself admits to having done when younger. He has passed up many opportunities to relent, such as calling off the dogs of the drug war in states that legalize."

seems to blame Pres. Obama for the war on drugs. This war has been a failure. But both the Executive and Congress have been involved in this war, whether under Republican or Democrat control. (As to prosecutions, compare Pres. Obama to law and order Republican presidents.) As to actions by states, this is relatively new, and it takes time for the laboratory of ideas via states to work through the federal level, e.g., SSM. So I expect that in due course Pres. Obama, or more likely his successor, to take steps recognizing the changes taking place in the states, whether for medical use or pure pleasure. But there are many drugs out there besides "maryjane." There are dangers with certain drugs. Maybe politically the oxymoronic libertarian populism movement would seek absolutist drug use (similar to yahoo 2nd Amendment absolutists). But a debate and discussion is necessary. Prohibition doesn't work for my drug of choice: Bombay on the rocks with a wedge of lime. Pres. Obama can be cool (not KOOL, hopefully) on this, perhaps by including medicinal "ganja" under Obamacare as a first step.

By the Bybee [expletives deleted], Right-wing comedian Billy Kristol (Weakly Standard) on This Week with George S yesterday expressed his view that Pres. Obama should respect the law on the books on sentencing, that any changes should come about via Congress with legislation, rather than by Executive fiat. Although Brett often points to the need to always follow the rule of law, he seems to want Pres. Obama not to do so for "weed." [No jokes about the "pot" calling the kettle ...., please.]

Enforcing laws you broke in the past is not a novel thing. When you are in office, you have a different role than as a teen or college student.

Shag is right to note it is wrong to personalize this thing. It's a general problem and Obama being too conservative on it doesn't change the point. Then again, I didn't expect him to be that liberal or libertarian. He ran as a moderate.

The Administration has supported drug courts, supporting funds for drug treatment, signed the Fair Sentencing Act, supported needle exchanges and now his AG has spoke about a new sentencing policy. Also, his judicial nominees were more likely to be lax as seen by votes by Sotomayor, e.g., v. Alito.

As to medicinal marijuana, the Administration started well there but (in part because of new tough DEA commissioner, I believe) backtracked some, but the increasing number of states with medicinal marijuana has made it a much bigger thing to face.

More should be done, but when even Rand Paul only goes too far (a kinder and gentler criminalization), we have a long way to go.

All powers, whether legislative, executive, or judicial, can result in bad outcomes. One ultimately has to decide whether the risk of bad outcomes outweighs the presumed benefits of good ones. The fact that Bill Clinton pardoned Marc Rich, George HW Bush, Eliot Abrams, or Gerald Ford, Richard Nixon, does not lead me to conclude that we should eliminate the power entirely (just remember Warren G. Harding and Eugene V. Debs!). It is worth noting, though, that many state constitutions have attempted to rein in their governors' powers to pardon, often by setting up pardon commissions and the like. I would certainly expect the pardoning power to arise if we ever had the new constitutional convention that I continue to support.

The Emancipation Proclamation raises other important issues. I have published a lecture that I delivered at the University of Illinois Law School some years ago, "Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?"

Sandy's lecture on the Emancipation Proclamation is available via Hein Online, available to me via my library. It was written in 2001 before 9/11. I learned quite a bit about Sandy from reading his lecture. Twelve years have passed since this lecture. I better understand Sandy's views expressed in his posts at this Blog reflecting events during such 12 years. While originalism is not discussed, it seems clear to me that Sandy is not an originalist. Those interested in the imperial executive should find Sandy's lecture interesting, as well as his takes on Bush v. Gore, George W. Bush and Al Gonsalez, which can be weighed by subsequent events.

Sandy's articles both with and without Jack Balkin are always enjoyable for content and writing style. I feel I know him better because of his views on Abraham Lincoln during those difficult times for America. The present times are also difficult, with no easy solutions.

[Note: Those without library privileges to access Hein Online may purchase a copy directly from Hein. 2001 U. of Ill. L. Rev.1135 (2001).]

He should be less conservative in his use of the pardon power and this is one area that should be reformed. It doesn't get enough play, which is one reason it will continue to not be properly addressed. LOL Account